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Connectix Wins Sony Playstation Appeal
In one of the many submissions concerning the recent Connectix victory: Enosson writes, "The 9th Circuit Court of Appeals has overturned the lower court injunction prohibiting Connectix from selling Virtual Game Station or using the Sony BIOS in developing new versions of it. The decision says that its use of the copyrighted BIOS in reverse engineering was "fair use," and that any "shoddiness" in the VGS product did not tarnish Sony's PlayStation trademark. The full text of the decision is available." There is also, as you would expect, mention of the ruling on the Connectix site as well.
... their own emulator.
... this would dilute the feature set of the PSX2 a little, marketing-wise, and thus detract from the launch.
After all, isn't it true that Sony make all of their profits from the Playstation empire from sales of the games, not the consoles? That in fact, the consoles themselves don't make *any* profit?
That sounds like software, to me... seems they'd have to be a pretty damned stupid company to not release their own PSX emulator.
Oh, wait. I just thought of a reason why they wouldn't release an emulator for the PSX: PSX2.
Since the PSX2 is supposed to be fully compatible with the PSX game titles, it would be a poor marketing move to release a software-PSX right around the time of the PSX2 release
Bummer for Sony. Too bad they didn't think of doing the software-PSX thing a year ago, but then that's the breaks in the high tech world, and I guess they were already raking it in anyway with the game title profits...
; -- the corruption of government starts with its secrets. a truly free people keep no secrets. --
I am a lawyer, but this is not legal advice. If you need some,
.).
see a lawyer licensed in your jurisdiction.
You are pretty much correct here, but let me extend and comment a bit.
The ninth circuit is indeed the most often reversed, but that tends
to be because of "lefty" decisions where ideology prevailed over the law.
Criminal cases in particular, when judges confuse the rights of the
accused and general population with the rights of criminals.
THis is a technical case, and of a type that the 9th gets a disproportionate
share. It has more experince with this type of case than most of the
otehr circutes, and the case doesn't fall into the categories that give
the 9th its bad reputation (I won't name names, but there's a judge known
as "Judge Certiori" for the near automatic review . .
The decision might also be classified as "pro-commerce," taking it
far out of the type of cases that tend to be reviewd.
As far as the weight outside of the 9th, it's not as dismal as you
paint it. The decision is not *binding* precedent outside of the
9th circuit, but it is *persuasive* evidence. That is, a a federal
judge in another circuit *can* decide it's wrong, but will not do so
lightly.
Finally, the Supreme Court, when possible, waits until conflicting
opinions arise between the circuits before it hears an issue. It is
unlikely to hear this case.
hawk, esq.
The VGS swap trick isn't one people should be trying, because it has the potential to damage your CD-ROM drive. I'm not saying what it is, not fur security through obscutiry's sake (read my posting history and you'll know I'm against that myth) but because it's dangerous, and not something people should try. And you know that everyone with VGS is going to want to try this one, whether or not they want to actually pirate or not.
You're forgetting that as manufacturing costs dropped, the retail price of the PSX also dropped. It had to, just to stay competitive.
Translation: Sony's still taking a loss on the hardware. They probably will with the PSX2, too.
While, strictly speaking, the Connectix product enables users to play their PlayStation back-ups on their G3, we all know that this is not primarily the use to which it will be put.
Actually, Connectix has been extremely conscientious about antipiracy measures. A "modchip patch" exists for Version 1.0 of the software (which sucked compared to later versions) but no such patch exists for later versions of the software. I'm not even certain it can be done.
Also notable is that CVGS cannot use disk images; you must use CD's. This kills most pirates right there. Those who do have burners are harder to stop, but someone who really wants to pirate software is, simply put, going to do it; you can't stop those people. It's no easier with VGS than a "real" PSX.
Yes, there's still a VERY little-known disk-swap trick (and no, I won't say what it is) that you can do with VGS. You can also do this on a regular PSX, so there's no difference.
So this judge has just made it harder for a company engaged in lawful business to earn its justified profits. And why? To protect a principal.
I think you mean "principle." Last I checked there were no school directors involved here.
But you're wrong about one thing. Sony takes a loss on every console it sells. A rather substantial one at that. This is made up for by game sales, yes. But for every copy of VGS sold, Sony saves money. As much as it makes from more than ten individual non-Sony PSX games, or four Sony-made ones. In other words, each person has to do a lot of pirating before Sony takes a loss. It still earns its justified profits before them.
A quick cruise of Hotline or IRC shows the reality.
Yeah. So you should look at it yourself. PSX games are actually quite hard to get on Hotline or IRC. The process often involves bounces all over the Web, signing oneself up for porn lists and/or ad companies, finding passwords, and downloading obscenely huge files which still take hours to download over even the fastest connections. Of course you might be lucky enough to find a "free" server. In this case each image will take days, as the overwhelming traffic will slow the server to a crawl. These servers don't tend to carry many images (few sites do because of space demands) so you'll be bouncing back and forth between servers, repeating the process multiple times to get all the images you wanted. Oh, and since most PSX backup sites don't actually carry the emulators, once you have the images you need you have to go through the process again to find the emulator, and probably several more times to find a patch that works. And then, of course, the game still has to work with the emu.
My point: this isn't what you're making it out to be. Not at all.
They're kind of a mush-like concoction favored as a breakfast food in the southern United States. I think it's related to hominy, but I'm not exactly sure.
Dewey, what part of this looks like authorities should be involved?
The DMCA, as I understand it, eliminates a lot of reverse engineering, but this Connectix thing happened before it came into effect. I personally think the DMCA has a good chance of eventually being thrown out as unconstitutional, but until then, it will make a mess.
--
Infuriate left and right
I got my old Atari and Combat.
I'm happy.
My studio - www.graylands.ca
This is extremely good for the DeCSS case. Notice:
Precisely the same reason for going to court.
Fill in the blank. A precedent has been set. We're going to win this one.
Copyrighted software ordinarily contains both copyrighted and unprotected or functional elements. Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d 1510, 1520 (9th Cir. 1993) (amended opinion); see 17 U.S.C. S 102(b) (Copyright protection does not extend to any "idea, procedure, process, system, method of operation, concept, principle, or discovery" embodied in the copyrighted work.). Software engineers designing a product that must be compatible with a copyrighted product frequently must "reverse engineer" the copyrighted product to gain access to the functional elements of the copyrighted product. See Andrew Johnson-Laird, Software Reverse Engineering in the Real World, 19 U. Dayton L. Rev. 843, 845-46 (1994).
This spells "kiss my ass" to the DVDCA.
LK
"Hi. This is my friend, Jack Shit, and you don't know him." - Lord Kano
I ought not reply, you're obviously too dead-set in your opinion...
but don't you think that the RIAA is concerned, now that the 9th circuit has now shown a clear understanding of the value of reverse engineering?
First, their "trade secrets" are blown open, worldwide... and now they know that if their case gets appealed enough, the second highest federal court in California is on the side of DeCSS.
So, just keep sending the EFF money for the DeCSS defense.. and take heart. If the money holds up, to make it though enough appeals, the right side is bound to win.
Hawk,
:-) That's a very good point, and does make the picture seem even brighter.
The whole "technical" aspect never occurred to me... Perhaps because I'm not a lawyer.
Hopefully some moderators will give your comment some +'s.
I guess the 9th would see a larger-than-normal number of such cases, thanks in part to a certain region, in northern California... and the Supremes would certainly give more trust to the 9th's experience in technical issues, since seeing so many technical disputes would have to increase one's knowlege of such matters.
Good News: This is the 9th Circuit, so any applicable precedent this sets, would probably be usable in the DeCSS suit (as that suit was filed in California).
Bad News: 9th Circuit decisions are only useful in the 9th Circuit. The 9th Circuit includes a selection of Western states. While the 9th is the largest, its decisions carry no official weight in the other 8 Court of Appeals jurisdictions.
Really Bad News: The 9th Circuit, in recent years, has been the most liberal, and therefore the most overturned, by the Supreme Court. So, if Sony can get the Supreme Court to accept an appeal, then it just might go Sony's way, after all.
Good News: The Rehnquist Court doesn't accept many cases these days. The 9th circuit's decision will probably stand.
I have a Powerbook G3, I also happen to have a Playstation and a couple games I like to play. My brother plays on the Playstation much more than I do because I'm at school most of the freakin day. I've been waiting for this lawsuit to pan out so I wouldn't buy a product with an injuction on it. But not I probably will end up getting a copy, being able to play my favourite PSX games on the run with my laptop will be a really nice change. I'll finally get the chance to enter the time condensed realm and beat the damn game. I can see the point of Sony's case but I don't think it holds water especially since Connectix isn't doing or suggesting anything illegal. If Sony were smart they would have already released their own PSX emulator for the PC and Mac. When PSX was released it kicked the pants out of all the computers out at the time but the way we work with PC hardware the PSX was so longer cutting edge. The same will happen to the PSX2, PC hardware will eventually catch up and surpass it. If Sony had released a software emulator a year or so ago they could have made a killing, not only do they have every single little spec on the PSX but they also had a user base of millions of people. Bottom line, development would be nearly free which means the price of the program would be all gravy.
I'm a loner Dottie, a Rebel.
It's cheaper to get a modded PSX to play pirate games than to get the buy a Mac of sufficient power + VGS to play a pirate game; I don't think the reverse engineering effort changed the landscape *except* to broaden the user base, make the pie bigger, so to speak, for the market of PSX games!
Here's the logic:
Without VGS we can already pirate PSX games via Hotline or IRC, burn them, and play them on modded PSXs. Reverse engineering has nothing to do with this situation, because VGS doesn't exist.
With VGS, and the ability to reverse engineer, we can now play PSX games on the Mac(and maybe PC). It enables the user to play a PSX game on the Mac/PC. Whether the game itself is pirate or not is another question; but if even 1/10 of the buyers of Bleem or VGS buy PSX games, than that's more sales to Sony than would otherwise occur; how does this hurt Sony?
As for whether reverse engineering promotes piracy, I don't see how this reasonably or logically(two different threads) falls out of the system.
-AS
-AS
*Pikachu*
I'm not sure you make good sense here =)
You buy a console from Sony; they make their money (let's say the market is 10,000 people; at $50 profit a console, they will make $500k)
Sony has now licensed the schematics and libraries and tools for this console to 10 game manufacturers, at $40k each; just to be stupid, let's say they only get $10,000 out of each licensee as profit; that's another $100k for Sony.
Each licensee makes 10 games; each consumer buys 2 games from 3 licensees during the lifetime of the system, at $50 each; 10,000 consumers then buy 6 games; 60,000 games at $50 each is $3,000k right off the bat; if each game only gives $10 profit to Sony and $10 to the licensee, then Sony has made $600k from hardware sales and such, and $600k from the games, while the licensees have each made $560k.
Now, lets say a company makes a clone/emulator/whatever.
A few cases for good measure:
Consumer owns both Sony PSX + Emulator
Consumer owns PSX only
Consumer owns Emulator only
We already show that Sony makes money if the only device on the market were PSXs. A good $1,200k. If there exists an emulator only, should we assume the same profit level, because it would/should/could be a perfect substitute?
So what happens when we get both PSXs and emulators? If the market doubles in size because there is no overlap, and the nature of the consumer stays roughly the same, statistically, doesn't Sony make, instead of $1,200k, $1,800k? And in the case where there is overlap, Sony of course makes less money than $1,800k; lets say that of the consumer market, 1 out of 10 people who own a PSX compatible system own an emulator; That means only 1,111 people own emulators but not a PSX. If they follow similar gaming habits, and buy 6 games each, that means Sony gets an additional $67k a year from them... Which doesn't hurt Sony at all!
And if there is signficantly more people buying the emulator, say 3 out of 10 people who play PSX games... 4,286 buyers, or 25,714 more games, or $257k more profit for Sony... So the more systems out there, it seems, the more money Sony can make. Why doe this hurt them, except that it may slow down the adoption of the PSX2?
And don't forget, if you took that last statement seriously, that the PSX2 outclasses most notebooks, PCs, and Macs, so adopters of the PSX2 would not be substituting it with PCs or Macs in the first place!
-AS
-AS
*Pikachu*
It's scads easier to reverse engineer Connectix's software to create, say, a GPLed Linux/BeOS/whatever version of the PSX than it is to actually reverse engineer a PSX itself...
So when you do you think this will happen, and will Connectix just sit idly by as it happens? And will Sony actually encourage a 'free' version, if it were to pop out, to spite Connectix, especially as their PSX2 rapidly approaches ground zero?
Essentially/especially since after the next reverse engineering session, it will be porting of PSX from platform to platform, much the same way MAME or Ataris or Commodore 64s or Apple IIs have been emulated for years now?
Just a random thought =)
-AS
-AS
*Pikachu*
Um, developers can already sidestep Sony, if they wish, and make PC/Mac games, with better graphics, already, without the emulator. The emulator doesn't make the sales of a console less likely, because the console itself offers a different set of advantages than a PC; simplicity, compactness, and guarantee of operation(to a point) and this is true for both the consumer and the developer.
The emulator itself affects none of those points, and just increases the options available for the consumer who don't necessarily value the above three values of a console, else they would buy a console, I think.
To address your points more succintly:
<em>Anyway, this is clearly not about short term financial profits, but future control.</em>
Obviously; I don't disagree this is why Sony objects to CVGS.
<em>If no one were to buy playstations anymore, because they can play the games on there computers, the PSX would becomes irrelevant.</em>
Are you suggesting that the CVGS and emulators will be replacing the PSX, making the PSX irrelevant? The PSX2 would replace the PSX as well, making it irrelevant. Even so, this brings up a question; Why would people stop buying PSXs with the advent of the emulator? A PSX is still cheaper, simpler, and easier to use than a PC/Mac + emulator.
<em>Game companies could sidestep the middleman and just make PC/Mac games. With better graphics to boot.</em>
They can already do this; the presence or lack of an emulator does not prevent them for designing for the PC; the console is just a simpler platform(stable and consistent) to design and release for than a PC or Mac. About the only threat I can really acknowledge and think of is that if the PSX got reverse engineered, then people could start writing games to the console platform and emulator *without* licensing from Sony, diminishing the overall quality perhaps, or profits/royalties to Sony, whatever. But this is only a threat from the Open Source people anyway =)
<em>Without the emulator, Sony controls the market absolutely. With it, they do not.</em>
This I grant. As far as their plans and future, control of the market makes it easier for them to forcast, predict, and rake in profit.
But isn't this an argument about the consumer's rights as well? That we should be able to play the game on an alternative platform if it's available? Isn't this the same argument as DeCSS?
On the corporate side, it's about control, and on the consumer side, it's about freedom. Balancing the two is pretty difficult, I guess.
-AS
-AS
*Pikachu*
There have been some evocative counter-posts about how the emulator hurts Sony from a control standpoint, and this is true. An emulator will be a point of control *not* under Sony's thumb, of it's released by Connectix or something.
The point I'm making though is that as a consumer, I don't care about Sony's control of the market, except if it's hurting me, and only if it actually is a benefit to me. Sure, sucks for Sony, but isn't that what innovation and competition is about? If Sony wants control, using legal tactics and such isn't the best way. Good products, good PR, good technolgy, good sales is the way, no?
Otherwise, isn't it the same argument for why M$ has done nothing wrong? It just wanted control of the market and it's various directions! Consumers have rights too, and corporations making money, no matter how many lobbiests(sp?) or lawyers they have, do not have more fundamental right than the consumer or individual; both are entities under the law, and have some set of rights.
Monopolies are not one of them, except perhaps earned through good business, and even then, if you get *too* good, the DOJ can give you a visit.
2 cents.
-AS
-AS
*Pikachu*
So as a programmer, my feeling is now this -- the war is over, (which is where I would have personally drawn the ethics line anyway) use the DeCSS code to make players, but don't even bother to extend the code into making it copy the DVD's, even if it's relatively easy to do.
That keeps us off the hook in terms of the piracy claim, and really puts the onus back on the MPAA to focus on what is really piracy -- and go after those folks, which is what they should have done anyway, rather than attacking the code itself.
...Open Source isn't the only answer -- but it's almost always a better value than the alternatives...
The DMCA allows reverse engineering of a playback device. It doesn't allow making something which decrypts non-programs without the approval of the copyright owner.
Ah, but decrypting DVD video files in order to play them is with the approval of the copyright owner.
The fine print on the back of DVD movie packages typically has license verbage like "Licensed for private home viewing only". Doesn't say "on authorized equipment" or anything like that, so a reverse-engineered CSS decryption system as part of a player is clearly legal.
The trick in this case is showing that DeCSS, especially the Windows version, is part of a playback system. (IMHO, sites which have the DeCSS code only without the other viewing code (nist, mpeg2dec, ac3dec, or etc.) may have a tougher time of proving that.)
-- Alastair
> So this judge has just made it harder for a company engaged in lawful business to earn its justified profits. And why? To protect a principal.
You might be surprised to learn that a sizable fraction of the species homo sapiens thinks that judges should set principles above profits, as should legislators, lawyers, corporate executives, employees, consumers, etc.
Moreover, not all of us think corporations are endowed by their Creators with any Inalienable Rights, such as Life, Liberty, or the Pursuit of Profit. Corporations are a creation of a legal system, and don't hold an Inalienable Entitlement to anything that that legal system doesn't grant them.
If you don't like the rules the legal system offers Sony, you need to get out among the DVD protesters and make your voice heard in the opposite direction. (Appealing to some higher principle that sets aside 'principals' doesn't cut it!)
--
Sheesh, evil *and* a jerk. -- Jade
This seems to be a reason for emulation.
Issue #2- The Hardware: It is not known that Sony loses any money on the consoles (atleast it's doubtful they do anymore). While Sony would never say for sure, at the beginning, they probably took a hit on the console to get it out the door. Especially with all the problems/revisions they've had. Now, after such a long prouction, they are likely making a decent profit off every unit.
This seems to be a reason against emulation.
So we have a couple of puny reasons, some would to point for, and some against Sony wanting this emulation software. But what are we overlooking?
Issue #3- Control and The Future: This is the one everybody is missing. Look at the PSX2, people. This isn't just a gaming console, there are a lot of expansion possibilities on this baby. They don't want to make a PCI version to play its games with your PC. They want you to hook it up to your Sony TV through your Sony VCR and have all the Sony branded media stream right on through. The CVGS and Bleem! set a bad precedent for them losing control of a major part of this process. Big companies like control. It makes them feel good to have you buy all of the Sony add-on USB controllers and hook up your Sony digicam to the Firewire port. Noone knows exactly where Sony wants to take the PSX2. But they are holding the keys. (unintentional Matrix reference) And the PSX2 is going to be a very powerful machine which a wide variety of people (Newbies and Slashdotters alike) are likely to plunk a few hundred down on. We can poo-poo web access on a TV forever, but it they already own a PSX2, don't have a PC, and can pay $50 to hook it up to the web, what's going to stop people?
I'm not saying PSX2 or Sony is evil. But they want control of their vast dream. Emulators made by other people (or even a theoretical PSX emulator made by Sony for other hardware) takes that control away. Look for them to rigorously oppose the CVGS for as long as they can. Throwing around money at Sony to help further along their larger picture would be nothing new.
-doenermord
Don't blame the games, it takes a village to screw up a child.
Well, this was just one judges opinion on the subject. It would be nice if it were the same guy on the DeCSS thing, but it isn't. Remember, another judge found that it was illegal, and he was over turned by this judge.
No, this case was decided by a panel of 3 judges.
Don
The DMCA allows reverse engineering of a playback device. It doesn't allow making something which decrypts non-programs without the approval of the copyright owner.
Thus, even if the Xing player had been encrypted properly, the DMCA wouldn't prohibit breaking the encryption of the player.
In this case, there playstation programs weren't scrambled, so there's no DMCA involved.
Zdnet
CNN
and in case the 9th circuit site gets slashdotted, there's findlaw.
Naturally, Sony's pressreleases are conspicuously absent.
"If one is really a superior person, the fact is likely to leak out without too much assistance" -- John Andrew Holmes
Patience will pay off with Bleem! though, one day I'm sure they'll have 100% compatibility on their test system, of course that will be less certain on consumer PCs due to configuration issues, hardware differences, etc, but it will probably be close to 100%.
I'm glad to hear this news, here I was thinking that Sony had the law on their side in the Virtual Game Station case, if not the morality. I'm glad they lost, nice when law and morality go hand in hand.
Now we need a native Linux Playstation Emulator, unless there is already one out there. I wonder who out their is up to the task... heh, some one should suggest it to MoRE, it'd be a good way to legally spit in Sony's eye.
All the creatures will die, And all the things will be broken. That's the law of samurai. (Jubai, 1605)
I've always been puzzled why Sony sued in the first place. All the software did was broaden the audience for Sony's games - you weren't bound to purchasing $100 just for the capability - if you'd already bought a computer, you were fine. Sony doesn't make money on the consoles. They make it on licensing the games.
Perhaps they were concerned that someone offering the software could add extensions to games, much as Microsoft added its own extensions to HTML, Java, whatever. The old "embrace and extend" model of assimilation. This, however, seems like much less of a concern when there are millions and millions of players on the market before the software was released. Of course, Netscape had millions of browsers out when Microsoft started too.
Of course, we know how they did that....
-----
Klactovedestene!
I had a chance to talk to the Bleem guys at CES. Here's one of their points:
Bleem gross income as of Dec 31st 1999: Around $4 million
Amount Sony spent sueing Bleem: approximately $10 Million
"You want to kiss the sky? Better learn how to kneel." - U2
Sig:
Barbeque is a noun. Not a verb.
Which is the same with DeCSS.
If you read the legal documents submitted to the court in the DVDCCA case in California, you will see that the DVDCCA lawyers cited the original Sony v. Connectix injunction to support their case. Talk about having the chair pulled out from under you!
I assume the EFF is, at this very moment, submiting the appropriate paperwork to inform the court of this development.
Of course, within a few weeks of it's release on the Mac there was a "mod chip" patch which bypassed the PSX "bad sector" copy protection.
---
DO NOT DISTURB THE SE
This software, afterall, does NOT promote pirating Playstation Software. Rather, it allows people to play Playstation games they have purchased legally without having to purchase the Playstation Console.
An excellent decision by the judge, in my opinion.
"You ever have that feeling where you're not sure if you're dreaming or awake?"
"You spoony bard!" -Tellah
This makes me very, very happy. You'll notice that this case is almost identical to the DeCSS case, and a good precedent has been set. Sony wants to control the players not the media, just like DVDCCA wants to control their players not the media itself. Connectix's product will introduce competition into the Playstation console market, and if DVD technology is ever made open, hopefully other people will be able to offer DVD players not made by the DVDCCA collective monopoly.
Sony understandably seeks control over the market for devices that play games Sony produces or licenses. The copyright law, however, does not confer such a monopoly. See Sega, 977 F.2d at 1523-24 ("[A]n attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression and cannot constitute a strong equitable basis for resisting the invocation of the fair use doctrine.").
The court has squarely rejected the concept that copyright law can be used to enforce a monopoly on devices which play content. This is a good ruling, and it's consistent with precedent. Sega tried something like this a few years back, and the courts wouldn't buy that either. Unless another circuit decides otherwise, it's effectively the law in the US.
Regarding the DeCSS issue, it would be a step forward if someone created a straightforward Linux player for video DVDs and distributed it. That would create a situation very similar to this one, which might be an easier case to win than the DeCSS case.